Road user charging and privacy in the EU

In 2009 the great Dutch kilometre charge lost its majority in parliament and was put in the mausoleum of failed attempts to introduce road pricing in the Netherlands. One of the reasons for this sudden death of the ‘kilometerheffing’ was the idea, raised by the opposition, that the on-board-unit (OBU) would enable the authorities to follow cars everywhere. Such a violation of privacy was considered unacceptable by almost everybody. Once this image had settled down in the public opinion there was no way to fight it effectively without enhancing the impression that the authorities really wanted to follow the whereabouts of all motorists.

This political event shows how sensitive the relation between privacy and an OBU is. Even though there was no intention of following anybody with the system – and in fact serious measures had been taken to protect privacy – it was too late to turn the public sentiment. What could be learned from this event?

The major lesson is to take privacy seriously; not only in communications, but also from a legal point of view. The starting point is that privacy is defined as an undeniable human right in the European Convention on Human Rights. The notions of the convention have been translated into European law in several data protection directives. In the leading directive, the definition of personal information has been given as, ‘information relating to an identified or identifiable person’. In the case of an OBU, the data of the owner or driver of the vehicle is linked to the location data provided by the OBU. In the directive containing the specific privacy provisions for the telecom sector the restrictions have been established for the use of location data other than traffic data. These are the kind of data road user charging OBUs used for charging. These provisions specify the legitimate ground for processing location data other than traffic data as by means of an unambiguously given informed consent by the owner or driver of the vehicle. The location related personal data are to be considered as sensitive data because individual movements can be derived. These movements can provide a pattern, which could contain specific, sensitive personal information.

How sensitive the data is will depend on the frequency of the contact between the OBU in the vehicle and the road user charging system. Obviously a frequent contact every few minutes, like in the figures, will lead to a much more detailed view on the route of the driver than contact a few times a day. The density of the traffic also plays a role as both figures show.

Another important issue in this respect is whether the driver has a choice. In Germany for instance, the basic system is the manual system. The OBU is optional and is the specific choice of the owner of the vehicle. In that case the privacy issue will not be problematic. In Belgium however, every vehicle over 3.5 tonnes is obliged to have an OBU. In combination with a high frequency of contact this could easily lead to an infringement of the privacy. In the following example it is shown how the demand for an informed consent is related to the driver.

Example one: By following a particular vehicle at certain attendance, for example to a hospital, church or mosque, information could be derived with respect to the health condition or the religion of the relevant vehicle holder. That risk means that the location data in the event of using it as a basis for road user charging must be regarded as sensitive. The figures show the results of the communications with the on-board-units.

Example two: That consent must be given freely can be problematic in an employer-employee relationship. Recently a court in Vienna forbade Coca Cola to equip its service cars with OBUs that showed the route of these cars. The judge decided that following the staff during service required an unambiguously informed consent. The employee’s consent was given within their hierarchic relationship with the employer and thus was not freely given in a way that it could be deemed to be within the law. The case was brought to court by the employees’ council.

The question is whether the inescapable Belgian legal obligation to have an OBU is to be considered a violation of the privacy of the driver since in this case ‘informed consent’ is, in fact, ruled out by law? This question also relates to the fact that an OBU is even obligatory when no charged roads are being used. Because tracking and tracing has been totally incorporated in international commercial transport probably no company or driver will challenge the Belgian authorities on this issue. But for vehicles under 3.5 tons that are only being used regionally it may feel like Belgian big brother